• The application of the effect doctrine is not restricted to actions damaging for public interests of the state concerned, but includes commercial (economic) interests as well

The universality principle

• It is related to crimes which are offensive to the international community as a whole

• In exceptional cases a state may try offenders whatever their nationality and whatever they happened to carry out their criminal activities for offences which are so serious as to qualify as crimes under international law such as:

– e.g. piracy (The Law of the Sea Convention, 1982, Art. 105)

– war crimes (The four 1949 Red Cross Geneva Conventions)

– crimes against humanity

– genocide

– torture (UN Torture Convention 1984) and

– less certainly hijacking of aeroplanes, hostage-taking (US District Court for the District of Columbia, US v Yunis, 12

February 1988) and drugs-related offences

• Terrorism is not is not a crime susceptible to universal jurisdiction (United States Court of Appeals for the Second

Circuitus, US v Yousef, 2003)

• A distinction should be made between those crimes that were subject to universal jurisdiction in customary

international law (piracy, war crimes) and those that are regarded as international crimes under various treaty

• Majority of states will exercise the universal jurisdiction only if there is some real link between and the alleged crime and the state exercising the jurisdiction (e.g. the presence of the accused on the territory of the state, or the specific

Methods for dispute settlement involving the use of a third party with non-binding effect

• Mediation (good offices)

– one person participate (but not submits a settlement proposal)

– in the negotiations between the parties to a dispute

• Conciliation

– a commission submits a settlement proposal for

– a conflict requested to be settled by the commission by the parties to a dispute

Characteristics of judicial settlement

• a settlement based upon international law

• rendered by an impartial third party

• binding for the parties to a dispute

• proliferation of international courts (25 at present) – possibility of forum shopping (although only ICJ, ICC and the

Permanent Court of Arbitration are courts of general jurisdiction)

– The MOX case (concerning the complain of Ireland against the UK relating to the radioactive discharges of the MOX

plant in Sellafield) came before:

• International Tribunal for the Law of the Sea (ITLOS) (MOX case, Order of 3.12.2001)

• Arbitral tribunal under the UN Law of the Sea Convention (UNCLOS) (MOX case, Order No. 3 of 24.6.2003)

• Arbitral tribunal under the Convention for the Protection of the Marine Environment of the North-East Atlantic

(OSPAR) (MOX case, Judgement of 2.7.2003)

• Court of Justice of the European Union (Case C-459/03)

• The Permanent Court of Arbitration (MOX Plant Case, 2008)

• there is no hierarchy between international courts

– Art 92 UN Charter: The International Court of Justice shall be the principal judicial organ of the United Nations…

– Art 95 UN Charter: Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence of which may be concluded in the future

• decisions of one international court are not binding upon other courts

Arbitration

• The establishment of arbitrage tribunals

• The parties to a dispute conclude an agreement (compromis) stipulating

– the mandate for arbitrators

– the law to be applied

– the procedure and rules to be deployed (Model Rules on Arbitral Procedures drawn by the International Law

Commission)

– E.g. Arbitral tribunal under the UN Law of the Sea Convention

Access to the ICJ (Article 35 ICJ Statute)

• UN members

– Serbia was not a party to the ICJ Statue in the period 1992-2000 when it was suspended (ICJ, Legality of the use of

force case, Serbia and Montenegro v Belgium, 2004), but Serbia had a capacity to be a party to proceedings before

the Court in the period 1992-2000 as a party to the 1948 Prevention of Genocide Convention which Art. IX confers

the jurisdiction to the ICJ in the disputes arising under the Convention (ICJ, Bosnia v Serbia and Montenegro, 1993

and 2007)

• Non-UN members (Albania in Corfu Channel Case, ICJ, 1949)

• Special provisions contained in treaties in force

– prior to 1945 (ICJ, Legality of the use of force case, Serbia and Montenegro v Belgium, 2004)

– any treaty in force (ICJ, Bosnia v Serbia and Montenegro, 2007)

The jurisdiction of the International Court of Justice

- principal judicial organ of the UN (Art. 92 UN Charter) -

• Jurisdiction in contentious cases

– only states can be parties before the Court (Art. 34(1) of the Statute)

– all the UN member are ipso facto parties to the Court Statute (Art. 93 UN Charter)

– ICJ has jurisdiction even when the matter is simultaneously dealt with by the UNSC (ICJ, Bosnia v Serbia and

• Special agreement between Indonesia and Malaysia concerning sovereignty over Pulau Ligitan and Pulau Sipadan

• Article 1 Submission of Dispute

• The parties agree to submit the dispute to the Court under the terms of Article 36, paragraph 1, of its Statute

• Article 2 Subject of the Litigation

• The Court is requested to determine on the basis of the treaties, agreements and any other evidence furnished by the

parties, whether sovereignty over Pulau Ligitan and Pulau Sipadan belongs to the Republic of Indonesia or to

Malaysia

The Court jurisdiction on the basis of a treaty provision

• `Disputes between the contracting parties relating to interpretation, application or fulfilment of the present convention… shall be submitted to the International Court of Justice at the request of any of the parties to the dispute (Art. 9 of the Convention for the prevention of genocide, ICJ, Bosnia v Yugoslavia, 1993)

The Court jurisdiction on the basis of a facultatieve clausule

• I declare that the Government of Canada accepts as compulsory ipso facto and without special convention, on condition of reciprocity, the jurisdiction of the International Court of Justice, in conformity with paragraph 2 of Article 36 of the Statute of the Court … over all disputes arising after the present declaration with regard to the situations or facts

subsequent to this declaration (ICJ, Spain v. Canada, 1998)

Reservations to the granted jurisdiction

• as to the subject matter

– .. other than d) disputes arising out of or concerning conservation and management measures taken by Canada ..

and the enforcement of such measures (ICJ, Spain v Canada, 1998)

• as to the time limit

– Yugoslavia recognizes the jurisdiction of the ICJ as from 26 April 1999

Forum prorogatum (the recognition of the Court jurisdiction by express consent or by consent inferred from

conduct)

• A state declares no objection regarding the Court jurisdiction in a case bought unilaterally by another state before the

Court (ICJ, Corfu Channel, 1949)

• A state does not invoke a reservation made as regards to a compromissoire clausule or a facultative clausule

The effect of an ICJ judgement

• A judgement of the ICJ is binding for the parties to a dispute (Art. 94(1) UN Charter)

• The UN Security Council is empowered to adopt measures against a party which does not comply with a judgement

rendered by the Court (Art. 94(2) UN Charter)(example of non-compliance not followed by an UN Security Council

action: ICJ, Nicaragua, 1986)

International criminal law

Sources of international law obligations of individuals

• Customs

– the prohibition of piracy

– the prohibition of slave trade

– crimes against a peace

– crimes against humanity

– grave breach of international humanitarian law

• Treaties

– the four Geneva Read Cross conventions of 1948 and the 1977 protocols I and II attached thereto

– The Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto

of 1907

– The Genocide Convention of 1948

– The 1984 UN Treaty prohibiting torture

– the treaties concluded within the UN framework concerning terrorist actions against civil aircrafts and ships

International crimes

• Aggression

– the planning, preparation, initiation or execution, by a person in position effectively to exercise control over or to direct the political or military action of a state, of an act of aggression which, by its character, gravity and scale, constitute a

before, or during the war, or persecutions on political, racial or religious grounds … whether or not in violation of the domestic law of the country where perpetrated (Art. 6(c) of the Nuremberg Statute)

– There needs to be an act committed as part of a widespread or systematic attack directed against any civilian

population, with knowledge of the attack (Art. 7 of the ICC Statute

– apply to civilians and not combatants

– no need for the link with armed conflict

– no requirement of discriminatory motive

• War crimes

– Violation of the laws or customs of war which include, but are not limited to murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory and of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, or devastation not justified by military necessity (Art. 6(b) of the Nuremberg Charter and Art. 8 of the ICC Statute)

• Parties to the particular treaties (e.g. the UN Torture Convention 1984, treaties related to hostage taking, currency counterfeiting, hijacking and drugs trafficking, the Red Cross Geneva Convention I 1949 [Art. 49]; the destruction of submarine cables, slavery; the 1997 UN treaties concerning prevention of terrorist bomb attacks [Art. 8(1)] and financing of terrorist activities) are under the obligation to exercise the compulsory jurisdiction -> the principle aut dedere aut judicare (extradite or prosecute)-> a state, the party to the particular treaty, is under an obligation to

extradite or prosecute a person suspected of offences prohibited by the treaty who find themselves on its territory

– an absolutist obligation to prosecute of the custodial state (ICJ, Obligation to Prosecute or Extradite (Belgium v

Senegal), 2012, para. 95)

Case Ruto and Sang, ICC-01/09-01/11

International law and the use of force by states

The prohibition of the use of force

• Ius cogens (ICJ, Nicaragua, 1986, paras. 206 and 209)

• Art. 2(4) UN Charter

– all members shall refrain in their international relations from the threat or use of force against the territorial integrity

or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations

– elaborated in the 1970 UN Friendly Relations Declaration

– not clear whether the term ‘force’ includes only armed force or also economic and political coercion, although the UN

General Assembly resolution 3314 (XXIX) of 14 December 1974 on the definition of aggression which is accepted by the International Criminal Court is limited to acts of armed force (military violence), the preamble to the UN Charter does refer to the need to ensure that armed force should not be used except in the common interest, while Art. 51 UN Charter, dealing with the right to self-defence, specifically refers to armed force

• Treat to use the force is not aggression

• It is doubtful whether political and economic pressure constitute a violation of Art. 2(4) UN Charter

– prohibits the interstate, not intrastate use of force

The exception to the Art. 2(4) UN Charter prohibition of use of force by states in international relations

– ‘a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation’

• Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the UN, until the Security Council has taken measures necessary to maintain international

peace and security (Art. 51 UN Charter)

• Restrictions

• Restricted to the situation where an armed attack (broadly formulated in order to include an attack on the state

property or officials [citizens?] by military means on the territory of foreign states or an terrorist attack [SCRes/1368

(2001]) emanates from another state, as opposite to groups of insurgents operating from other states but not under the

control of the host state (ICJ, Congo v Uganda, 2005, paras. 146-147, 161-1650 (is the Congo v. Uganda ruling reconcilable with the UNSC endorsement of the US intervention in Afghanistan (UNSC Res. 1373 (2001))

• Only the most grave forms of the use of force constitutes an armed attack (ICJ, Nicaragua, 1986, par. 195; Oil

Platforms, 2003, par. 51)

• Applicable to the situations of aggression as defined in Article 3(g) of the UN General Assembly resolution 3314

• Criterion for the attribution: ultimate authority and control (para. 133) (based upon the position that peacekeeping

troops are subsidiary organs of the UN in accordance with the doctrine of delegation of powers which stipulates that

the principal, the UN, delegates powers to a agent, a troop-contributing state while the principal retains the ultimate

control) (The Hague Court, Srebrenica, 10.09.2008, par. 4.17

– ECtHR, Al-Jedda, 2011 both criteria (the ultimate authority and control criterion [para. 84] and the effective control criterion[para. 81]) are applied but no clear pronouncement on dual attribution is given

• The protection of human rights by states does not only entail that public authorities should abstain from arbitrary interference in individual rights. In addition to this primarily negative undertaking, there may be positive obligations which involve the adoption of measure designated to secure the respect of human rights between individuals

• Via the doctrine of positive obligations, the ECHR becomes involved in balancing the competing private interests of the parties, which is essentially different from its original task, i.e. striking a balance between the general interest of the community and the interests of the individual

• The existence of the positive obligation of a state grants horizontal effect (relations between individuals) to international human rights standards

Enforcement of international human right (monitoring procedures)

• Established under human rights treaties

– on national level

– on international level

• the report procedure

• the interstate procedure

• the investigation procedure

• the individual complaint procedure

• Established outside the framework of human right treaties

– UN Human Rights Council

• To address violations of human rights and make recommendations thereon

– Monitoring mechanism under OSCE (Organisation for Security and Cooperation in Europe)

Procedure for the protection of human right within the UN system

Protection of international human rights before national courts: right to an effective remedy

• Direct effect of Art. 7 of the UN Treaty against discrimination of women in the Dutch legal order (para. 4.4.2)

• The State is under obligation to undertake positive measures to eradicate the SGP discrimination against women and

ensure passive voting rights for women (para. 4.6.1)

• The court balances women's rights against the freedom of religion but gives priority to the former (para. 4.5.2-5)

The distinction between the ICCPR and the ECHR individual complaint procedure

• ICCPR

• the exhaustion of local remedies as a precondition for the initiation of procedure

• facultative, based upon a protocol attached to the ICCPR

• no time limit for commencing the procedure after the exhaustion of local remedies

• quasi-judicial

• claims brought before other instances are not admissible

• no means for the enforcement of the decision

• ECHR

• the exhaustion of local remedies as a precondition for the initiation of procedure

• compulsory, based upon the Treaty itself

• the existence of the time limit for commencing the procedure after the exhaustion of local remedies

• judicial

• claims brought before other instances are not admissible

• there are means for the enforcement of the decision (the Committee of Ministers)

The scope of the application of the ECHR

• On the territories of the signatory parties (Art. 1 ECHR)

• Extraterritorially: ECHR states are to respect human rights obligation not only on their own territory but also when as a

consequence of lawful or unlawful military action they exercise overall effective control of an area outside its national

territory, whether it be exercised directly, through its armed forces, or through a subordinate local administration

(ECHR, Loizidou, 1995). The same applies to the ICCPR (ICJ, Legal Consequences of the Construction of a Wall in

the Occupied Palestinian Territory, 2004, par 109-112).

• However, the bombing of Yugoslavia by the NATO states did not lead to the application of the ECHR standards to

citizens of Yugoslavia: bombarded citizens do not fall under the jurisdiction (effective control) of the states engaged in

bombing (ECHR, Brankovic, 2001)

• Actions of a state carried out on behalf of the UN acting under Chapter VII of its Charter do not fall under ratione

personae of the ECHR (ECHR, Behrami and Behrami v France, 2007 ). The court does not apply its Bosphorus

equivalence doctrine in this case

– The Bosphorus equivalence doctrine states that where state action was taken in compliance with international legal

obligations following from its membership of an international organisation and where the relevant organisation protected fundamental rights in a manner which could be considered at least equivalent to that which the Convention provides, a presumption arose that the state had not departed from the requirements of the Convention. Such presumption could be rebutted, if in the circumstances of a particular case, it was considered that the protection of the Convention rights was manifestly deficient: in such a case, the interest of international cooperation would be outweighed by the Convention's role as a ‘constitutional instrument of European public order’ in the field of human rights (ECHR, Bosphorus, 2005, paras. 155-156)